This article was written by guest authors Jon Reidy, a Houston-based litigator; Michael J. Stephan, Law Clerk on the United States Court of Appeals for the Ninth Circuit; and Guha Krishnamurthi, Law Clerk on the United States Court of Appeals for the Seventh Circuit. They are all graduates of The University of Texas School of Law, class of 2010.
It is a well-known maxim that a lawyer shall not advise his client to violate the law.[i] At the same time, the ground reality is that lawyers often tell their clients to engage in conduct that, at least technically, violates the law.[ii] These lawyers likely characterize such communication not as advising their clients to engage in illegal conduct, but rather as merely informing their clients as to the consequences of such illegal conduct, should the clients engage in it. And if it turns out that the clients weigh the consequences and adjudge that breaking the law isn’t such a big deal, their lawyers can’t be blamed for that. But why the ruse? There seems to be a general consensus—even if unstated—that sometimes lawyers may ethically advice their clients to break the law.[iii]
For instance, suppose a client asks his lawyer for advice about where to park his car because the client is having trouble finding an available parking spot. The lawyer knows that the only available physical space for parking a car in the area is marked with a prohibitive red curb, and that the fine for parking in this space illegally is $25. He also knows that there is a roughly 10% chance of being ticketed for illegally parking in this space. Many think that a lawyer may ethically advice his client to park in the space after first warning the client of the $25 fine and the risk of being ticketed.
On the other hand, suppose a client is annoyed by his noisy neighbor and wants to personally shut his neighbor’s mouth by force. Few, if any, would find it ethically permissible for a lawyer to advise this client to use force against his neighbor as long as the client is willing to brave the risk of spending several years in prison.
So the question arises of how to distinguish the ethical advice that a client violate the law from the unethical. One possible answer is as follows: Lawyers may counsel their clients to do what is permitted by the law, but not what is forbidden. Note, however, that not everything that violates the law is forbidden; some illegal conduct is permitted.
To determine what is permitted and forbidden—and accordingly, what is ethically advisable and what is not—Robert Cooter’s familiar distinction between prices and sanctions may be apt. “A sanction is a detriment imposed for doing what is forbidden, such as failing to perform an obligation. For example, a defendant in a tort dispute may be ordered to pay compensatory damages for an injury caused by his negligence, or a convicted criminal may be sentenced to jail. In contrast, a price is [an expenditure] which is required in order to do what is permitted. For example, a company may buy goods in the market-place, but it must pay the seller’s price. Similarly, individuals are permitted to earn income, but obliged to pay taxes on their earnings.”[iv] And one may park in illegal spots, at the cost of possibly getting an expensive ticket.[v]
Therefore, in determining what conduct a lawyer can counsel his client to undertake, a lawyer might look to whether the law requires a sanction or a price. The lawyer can then determine whether the conduct is forbidden or permitted, and thus determine whether it is ethically advisable.
But how does one distinguish sanctions from prices? Although it is not always straightforward, the basic idea is that sanctions aim to prevent the conduct (since it is forbidden by society), whereas prices look to offset the harm caused by the conduct (since it is permitted, but imposes a cost on society). Cooter teaches, “Deterring actors whose fault is intentional, deliberate, or repeated requires a more severe sanction than deterring actors whose fault is unintentional, spontaneous, or committed for the first time. Therefore, sanctions increase with certain mental qualities of the act indicating more resistance to deterrence. . . . The efficient price depends upon the extent of external harm, not the actor’s state of mind. . . . [Thus, sanctions] increase with the need for deterrence, as indicated by the actor’s state of mind, whereas prices increase with the amount of external harm caused by the act, which is invariant with respect to the actor’s state of mind.”[vi]
This simple test may be difficult to apply, in large part because there are legal issues that straddle the border. For example, may an immigration lawyer advise his client to avoid ICE and inform the client how? May a lawyer suggest that his client engage in civil disobedience? We accept that intuitions may differ on these examples, and even on the ones we proffered above. We are content to note that the blanket prohibition seems overreaching given the descriptive reality that many in the profession think that it is not invariably unethical to counsel a client to violate the law. And while we do not claim that the price–sanction distinction is a panacea, we suggest that it is a good step forward in setting the contours of this interesting question.[vii]
[i] See, e.g., Model Code of Prof’l Conduct R. 1.2(d) (2004).
[ii] See Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 Yale L.J. 1545, 1561 (1995) (suggesting a variety of examples in which intuitions are that a lawyer may suggest that his client violate the law).
[iii] See id.
[iv] Robert Cooter, Prices and Sanctions, 84 Colum. L. Rev. 1523, 1524–1525 (1984). The original language says “a payment of money,” instead of “an expenditure.” We have made the change, because there is theoretical possibility that a price could be something other than a payment. For example, it could be a requirement that someone perform community service.
[v] We think that fines for illegal parking are generally prices, rather than sanctions. For one, they are not sensitive to states of mind. This is indicated by the fact that the penalties for illegal parking often do not increase with recidivism, as long as one timely pays the fines. Furthermore, they look to recompensate the government for the social cost imposed by the illegal parking—for example, the lost opportunity costs on the space occupied by the vehicle. Now, of course, there may be kinds of illegal parking that are sanction-worthy—namely, parking in handicapped spots, bus stops, and in front of fire hydrants. But run-of-the-mill illegal parking tickets seems just to be a high price for a special spot, akin to a costly valet service.
[vi] Id. at 1537.
[vii] For more on this issue, see generally Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 Yale L.J. 1545, 1561 (1995). Pepper discusses a variety of distinctions that inform the conversation on the boundaries of legal advice, including the rate of enforcement of a law, the malum prohibitum/malum in se distinction, and the price/sanction distinction. Pepper’s own view is that price/sanction distinction is not enough, but we think that is mainly because he wrongly construes the price/sanction distinction as synonymous with the criminal/civil division in law.